Assembly (Resource)

Thing 001652 (Monkey’s Selfies)

In 2011 David Slater, a wild life photographer from the United Kingdom, traveled to Indonesia to take photos of the rare Sulawesi crested macaques. The crested macaques (Macaca nigra) are a species that today only live in the Tangkoko Reserve, northeast of the Indonesian island Sulawesi (Celebes), and on smaller neighboring islands. Over the last 25 years the number of crested macaques has decreased by approximately 90%. The Tangkoko Reserve is near a village and the macaques are used to encountering tourists and photographers. During Slater’s visit, one macaque examined and manipulated his camera. When Slater retrieved his camera, there were several photographs taken by the macaque on it. In 2011 Slater published some of these photographs under the title Monkey’s Selfies. One photograph was included in The Daily Mail on-line newspaper. Its copyright notice read: “Copyright Caters News Service”. Monkey’s Selfies went viral on the Internet. In November 2014 Slater published the Monkey’s Selfies series in the book Wildlife Personalities.

In 2015 Next Friends of Naruto, a group including People for the Ethical Treatment of Animals (PETA), an animal rights organization from the United States, and Antje Engelhardt, a primatologist from Germany, filed a complaint against Slater for the violation of the macaque’s copyright by displaying, advertising, and selling copies of the photographs. Engelhardt studies the endangered Sulawesi crested macaques as part of the Macaca Nigra Project. She claimed that Naruto, a six year old macaque, took these photos. Next Friends stated that Naruto should have the right to own and benefit from the copyright in the photos in the same way as any other author would. They claimed that all benefits of Monkey’s Selfies should fund the conservation efforts for the Macaca nigra. Slater argued that PETA’s claim should be dismissed because animals such as Naruto are not protected by the U.S. Copyright Act of 1976.

On January 28, 2016, the court case Naruto v. David Slater took place at United States District Court of California. Judge William Orrick held:

I disagree with Next Friends. [...] Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. [...] “For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”¹ [...] Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals. [...] Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (Compendium). [...] [T]he Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable”.² Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey”. [...] Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art”. Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

The court dismissed the complaint by the Next Friends of Naruto and concluded that photographs taken by a non-human are not protected as a work of art within the meaning of the Copyright Act.